Disability legislation applies if impairment could lead to disability, say EAT
The Equality Act makes it unlawful to treat someone with a disability less favourably than others in similar circumstances.
What if they have a minor impairment that doesn't affect their day-to-day activities, but you're worried it might become worse and then amount to a disability and affect their ability to do the job? Is it safer to dismiss them at this stage so you can avoid having to grapple with the Equality Act?

The Employment Appeal Tribunal (EAT) recently considered this issue. A police officer had applied to transfer to another role. She had a hearing impairment that did not affect daily activities.The constabulary was worried that it might become worse and therefore rejected her application.

The EAT decided that this was unlawful discrimination. How did they reach that conclusion?

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Progressive conditions

Disability is defined as an impairment that has a substantial and long-term effect on the ability to carry out daily activities. However, the Equality Act explicitly says that if a condition doesn't yet have a substantial effect but is likely to get worse so that it does, that's considered to be a disability.

Perceived disability discrimination

The Equality Act also protects people who are perceived to have the quality in question. For example, it would be sexual orientation discrimination to treat someone less favourably than others because you incorrectly think they are homosexual.

The reasoning in this recent case

This decision was based on these two points. The employer perceived the employee to have a progressive condition, and treated her less favourably for that reason.
We sometimes see this in relation to stress: an employer dismisses before the condition becomes depression. This decision means that's unlawful.

What this means for you

We understand that the constabulary's appealing to the Court of Appeal, so the law on this may be refined. However, for now you should assume this is the law. In other words, you can't avoid the Equality Act by acting quickly, before a condition gets worse and amounts to a disability.

How we can help

If you think that an employee or an applicant may have a disability, you're expected to make reasonable adjustments so that they can continue in their position. Our Employee Handbook and in particular its Equal opportunities policy cover reasonable adjustments.

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